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Discretionary (In)Justice Continued: Discretion as a Tool to Deny Asylum
Full text linkIn 2012, I published an article entitled Discretionary (In)justice: The Exercise of Discretion in Claims for Asylum. At that time, I was concerned because of a pattern I had seen of adjudicators in individual cases denying applications for asylum not on the basis of statutory eligibility but instead in an exercise of the adjudicator’s discretion. Since that time, the administrations of both the former President Trump and the now-current President Biden have used every legal tool available to them, including the exercise of discretion in asylum claims, to make it more difficult to obtain asylum and therefore to discourage and prevent asylum seekers from seeking protection in the United States. This article surveys decisions of the Board of Immigration Appeals and the federal Circuit Courts of Appeal and attempted regulations related to the exercise of discretion in asylum claims from 2011 through the summer of 2024 to identify similarities, changes, and trends since Discretionary (In)justice.
It reveals that the issues with the exercise of discretion in claims for asylum uncovered in my analysis of the caselaw from 1980 through 2011 continue to be present. Overlap and fluidity between elements of statutory eligibility and discretionary factors have persisted. Courts still struggle significantly with the role that past and future persecution, including a grant of withholding of removal, should play in the discretionary analysis. Discretionary determinations remain all-encompassing, opening the door to bias and arbitrary decision making. Finally, the inherent meaning of the term discretion is no more clear now than it was previously, and the word continues to be used to mean a number of different things in the same context. New problems have also arisen since 2011, tied to cultural shifts. One relevant cultural shift has been towards increasing politicization of immigration generally and intensifying villainization of asylum seekers specifically. A second noteworthy shift has been growing involvement and pressure by the executive on the administrative agencies including nominally independent adjudicators to achieve results conforming with the executive’s stance. This has resulted in pressure to issue discretionary determinations in individual cases that are increasingly negative as well as attempts to move towards wholesale discretionary denials to categories of asylum seekers.
While I argued in Discretionary (In)justice that perhaps discretion could be sufficiently cabined to avoid these issues, I now believe this is not possible. In order to protect asylum seekers and insulate asylum law from future interference by the president, the exercise of discretion in asylum claims must be abolished. Asylum must be mandatory rather than discretionary
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Immigration Detention: Erosion or Reinforcement of a Theory of Immigration Exceptionalism
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Immigration Detention: Erosion or Reinforcement of a Theory of Immigration Exceptionalism
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Going Beyond Counting First Authors in Author Co-citation Analysis
Full text linkThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
Variations on the Author
Full text link“Variations on the Author” discusses two of Eduardo Coutinho’s recent films (Um Dia na Vida, from 2010, and Últimas Conversas, posthumously released in 2015) and their contribution to the general question of documentary authorship. The director’s filmography is characterized by a consistent yet self-effacing form of authorial self-inscription: Coutinho often features as an interviewer that rather than express opinions propels discourses; an interviewer that is good at listening. This mode of self-inscription characterizes him as an author who is not expressive but who is nonetheless markedly present on the screen. In Um Dia na Vida, however, Coutinho is completely absent form the image, while Últimas Conversas, on the contrary, includes a confessional prologue that moves the director from the margins to the center of his films. This article examines the ways in which these works stand out in the filmography of a director who offers new insights into the notion of cinematic authorship
Appropriate Similarity Measures for Author Cocitation Analysis
Full text linkWe provide a number of new insights into the methodological discussion about author cocitation analysis. We first argue that the use of the Pearson correlation for measuring the similarity between authors’ cocitation profiles is not very satisfactory. We then discuss what kind of similarity measures may be used as an alternative to the Pearson correlation. We consider three similarity measures in particular. One is the well-known cosine. The other two similarity measures have not been used before in the bibliometric literature. Finally, we show by means of an example that our findings have a high practical relevance.information science;Pearson correlation;cosine;similarity measure;author cocitation analysis
Discretionary (In)Justice: The Exercise of Discretion in Claims for Asylum
Full text linkSection 208(a) of the Immigration and Nationality Act provides that asylum may be granted to an applicant who meets the definition of a refugee-that is, someone who has been persecuted or has a well-founded fear of future persecution in her own country on account of race, religion, nationality, political opinion, or membership in a particular social group. Asylum is a discretionary form of relief which means that the United States government is not required to grant asylum to every refugee within the United States but instead may decide whether or not to do so. This Article sets out in Part I the history and current application of discretion as an element of asylum adjudications, including several case studies to illustrate when and how adjudicators deny asylum in an exercise of discretion and the serious impact of those decisions. Part II then argues that the fact that asylum is discretionary is highly problematic. First, discretion is unnecessary to achieve the purported goals of such a policy, namely, screening individuals for their suitability to become permanent members of the United States community. Second, the fact that asylum is discretionary results in inadequate protection for those fleeing persecution. Finally, the meaning of the term discretion is so inherently vague and confused as to make its use inappropriate, at least in the asylum context. This Article concludes that asylum should be a mandatory, not a discretionary, form of immigration relief. An adjudicator\u27s exercise of discretion in asylum claims should be eliminated, or at least substantially limited with an eye towards the problems discussed herein
Eroding Immigration Exceptionalism: Administrative Law in the Supreme Court\u27s Immigration Jurisprudence
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